AMERICAN LIBRARY ASSOCIATION, et al. v. GEORGE PATAKI, et al. | 97 Civ. 0222 (LAP)
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I, Bennett Haselton, of Nashville, Tennessee, do declare:
1. I am the founder and coordinator of Peacefire, a non-profit organization based in Nashville, Tennessee, that was formed in August 1996 to engage in activism with regard to the rights of minors on the Internet. Through my work for Peacefire and my own experience using the Internet, I have gained extensive knowledge regarding the various different ways that minors access information on and communicate via this revolutionary communication technology.
2. Peacefire currently has over 500 members who reside throughout the United States and adds approximately four new members every day. The large majority of our members are between the ages of 10 and 18, with an average age of approximately 15.
3. On behalf of Peacefire and its members, I submit this declaration in support of the plaintiffs' motion for preliminary injunctive relief against Section 5 of 1996 N.Y. Laws 600 (codified at N.Y. Penal Law ยง 235.21(3)) (hereinafter the "Act").
4. I am 18 years of age and am a junior at Vanderbilt University in Nashville, Tennessee, studying Mathematics and Computer Science. I am originally from Denmark.
5. I became interested in computers as a result of the free access to the Internet, especially the World Wide Web (the "Web"), provided by Vanderbilt University. Since gaining access to computer technology in college, I have become proficient in Windows programming, Web design and database management technology. In order to create and maintain the Peacefire site, I also had to learn about computer programming in a variety of different languages.
6. I and others founded Peacefire because we believed that students' interests in the debate over free speech on the Internet were not adequately represented. When I founded Peacefire, I was 17 years of age. Peacefire uses a variety of online technologies to inform the general public and minors in particular about the dangers that online censorship presents to students' continued use of the Internet.
7. Internet users can apply for membership in Peacefire simply by filling out the membership application on Peacefire's Web site located at http://www.peacefire.org. A copy of Peacefire's home page is attached as Exhibit 1. An Internet user who accesses Peacefire's Web site can click on "JOIN" which brings up an application form to join Peacefire. See Exhibit 2. A user simply needs to type in her name, e-mail address, date of birth, city, and state and then click on the bar to submit her application to join our organization. We do not verify the age that users list on their membership applications. 8.Peacefire does not require payment of any membership fees and Peacefire does not solicit financial contributions from its members. Members are strongly encouraged -- but not required -- to volunteer their time to participate in the organization's activities.
9. I estimate that approximately 80% of Peacefire's 500 or so members are minors under the definition of the Act. Because we created Peacefire as a student-run organization to focus on students' issues, we structured it like any other high school student organization -- adults such as teachers and parents can be associates of the organization, but full membership is open only to students.
10. As a member of Peacefire, one is placed on Peacefire's electronic mailing list and receives copies of Peacefire's monthly newsletter and other announcements. All members of Peacefire -- both full and associate -- receive our newsletter and announcements.
11. Peacefire also has a mailing list for member discussion that is only available to -- but is not mandatory for -- Peacefire members. Recent topics of discussion include students' right against search and seizure in the schools and free speech rights in the United States, as compared to free speech rights in other countries. About 20% of our members subscribe to the discussion mailing list, which broadcasts 10-15 messages per day.
12. As a not-for-profit, Peacefire is staffed by approximately ten part-time, volunteer staff members. Although Peacefire's mailing address is in Nashville, Tennessee, Peacefire is an Internet-based organization and therefore has no traditional headquarters. No two of Peacefire's staff members live in the same city.
13. Despite our limited financial resources and student staff, Peacefire has been able to reach a broad audience and has received media coverage from national online and print newspapers.
14. The Internet has no parallel in the history of human communication. It provides millions of people around the globe with a low-cost method of conversing, publishing, and exchanging information on a vast array of subjects with a worldwide and virtually limitless audience.
15. Peacefire members believe that the Internet offers a unique opportunity for minors to communicate and access information because of its easily accessible, low-cost, and nondiscriminatory nature. Having access to this "information superhighway" is especially important for minors who normally have to rely on others for the means, transportation, or resources necessary to gain access to information. A minor who has access to the Internet does not need to feel frustrated if her local library has only one room of outdated books or if an adult cannot drive her to the local art museum.
16. Peacefire's members use various means to communicate and access information on the Internet. For instance, they use e-mail to communicate with other Internet users -- both adults and minors -- around the world, including in New York. Many of Peacefire's members have subscribed to mail exploders and other listservs through which they receive information regarding various issues of interest to them and participate in discussions regarding these issues. For example, I and other members of Peacefire regularly participate in mailing lists including "fight-censorship," "CDA96-L," and "CYBERIA-L," to access and disseminate material related to free speech issues on the Internet. These mailing lists are maintained by individuals and organizations that are not affiliated with Peacefire.
17. "Fight-censorship" focuses on issues related to censorship on and off the Internet, "CDA96-L" focuses on the Communications Decency Act and litigation challenging its constitutionality, and "CYBERIA-L" focuses on legal issues such as copyright, free speech and trademark law as they relate to the Internet. Recently, members of Peacefire have posted messages on these mailing lists announcing updates and modifications to the Peacefire Web site and asking other users' opinions on legal issues on which Peacefire members are not proficient. Members of Peacefire also read important information on these mailing lists regarding the status of student rights in other countries and the opinions of adults on how censorship affects minors' free speech rights.
18. Peacefire's members also regularly participate in discussions that are occurring on the many thousand different newsgroups and bulletin boards that are available on the Internet -- including newsgroups such as alt.censorship and alt.activism -- on censorship- related issues. Alt.censorship is a newsgroup focused on censorship both on the Internet and in other media while alt.activism focuses on issues important to political activism. These newsgroups allow us to share information with a wider audience of Internet users interested in censorship issues.
19. Moreover, many of Peacefire's members also use various different browser softwares to search the Web for specific information or simply to "surf" the Web for information. The Web is comprised of millions of separate Web sites that display content provided by particular persons or organizations. Any Internet user anywhere in the world with the proper software can create her own Web site, view Web sites posted by others, and then read text, look at images and video, and listen to sounds posted at these sites.
20. Just sitting down for a few minutes at a computer, a fourteen-year-old with access to the Internet and a Web browser can "walk" through the National Air and Space Museum and look at such exhibits as the Enola Gay and the Lunar Module (http://www.nams.edu/); go on a guided tour through every room of the White House (http://www.whitehouse.gov/WH/Welcome.html); and visit the National Baseball Hall of Fame and Museum in Cooperstown, New York and look at the "stats" of her favorite legend (http://www.enew.com/bas_hall_fam/). The Internet can thus be an important educational and research resource for minors.
21. A fourteen-year old high-school freshman, for example, researching a paper on international human rights issues can visit the United Nations (http://www.un.org), the Library of Congress (http://lcweb.loc.gov/home page/lchp.html), the New York Public Library (http://www.nypl.org), and the Yale Law School Library (http:/elsinore.cis.yale.edu/lawweb/lawlib.htm) from her family's, high school's, or library's computer.
22. The Internet is also a unique source of information for minors because it offers an environment of privacy and anonymity that cannot be achieved in other media. For example, a sixteen-year old who needs information on sexually transmitted diseases can get answers to her questions by accessing such Web sites as the STD home page (http://med- www.bu.edu/people/sycamore/std/std.htm), or the American Social Health Association's site (http://sunsite.unc.edu/ASHA), without suffering the embarrassment and social stigma that may come from a visit to a clinic or the school nurse.
23. In addition to access to information through these various channels, the Internet also provides a foundation for building new forms of community, based not on any accident of geographic proximity, but rather on the commitment to a specific issue -- for example, the free speech rights of minors -- or bonds of common interest, belief and culture. The growth of Peacefire exemplifies how the Internet, as an innovative, interactive, low-cost and easily accessible means of communication, can be successfully used by a group of activists with extremely limited resources to organize a national constituency around an issue.
24. Unless enjoined, the Act will greatly impair the tremendous speech- enhancing qualities of the Internet for Peacefire, its members and many other minors. Peacefire and its members believe that the ability of minors to obtain online information and to participate in chat rooms or discussion groups with other minors and with adults is a constitutional right as well as a vital part of any young person's education. The types of information available on the Internet for minors are vast and include information available in libraries regarding civil rights and civil liberties, health and sex education, and politics.
25. Peacefire's members fear that the Act poses a significant and concrete risk to the rights of minors to continue to have free and low-cost access to the enormous volume of material available on the Internet. Because of the vagueness of the Act and the defenses that are set forth in the Act, Peacefire fears that a great amount of constitutionally protected speech (even as to minors) will be chilled and in many cases eliminated by content providers altogether from the Internet. Already there are indications that content providers such as Mr. Kinsky, an artist who displays work on Art on the Net, have removed certain of their works from their Web sites because of their fear of prosecution under the Act. In addition, Peacefire and its members also fear that the Act will cause various operators of online services and Web sites to begin to exclude minors from their sites altogether rather than risk prosecution or the enormous costs of complying with the Act's defenses.
26. The Act does not appear to make any distinction between material that is "harmful" to younger minors and material that is "harmful" to older minors. Therefore, the Act might very well make it a crime to provide, for example, explicit safer sex information to teenagers, information that is unquestionably of great value to these older minors. Because of this ambiguity in what is prohibited by the Act, there is a substantial risk that content providers will censor material or attempt to block access to materials that are of great value to older minors, such as information regarding sexuality, reproduction, and the human body. Without further definition of the "harmful to minors" standard, the Act would effectively ban speech which is constitutionally protected for older minors.
27. The vagueness of the Act presents a substantial risk that content providers who fear prosecution will steer so far wide of anything that might be actionable that large amounts of protected speech for minors will be eliminated altogether from the Internet.
28. Moreover, Peacefire and its members understand that the Act provides certain defenses from prosecution to content providers who restrict or prevent access by minors to "indecent" material. Attempts by content providers to utilize these defenses, however, will be extremely harmful to minors' constitutional rights to freely access information on the Internet.
29. Age verification is not technologically possible for the vast majority of content providers on the Internet. Even if age verification were technologically feasible, the Act would likely result in the outright exclusion of minors from many of the vast public spaces in the online medium that are currently accessible to both minors and adults. Many content providers could not afford a system to verify the age of their audience and would simply eliminate all "indecency" from their site to avoid prosecution. Those who could afford to verify age would have the additional cost of creating two versions of their online communications -- one for adults and one for minors. Thus, many speakers would simply choose to exclude all minors from all of their communications rather than shoulder the economic burden of creating two distinct versions of their material or message and monitoring access to these versions.
30. Age verification -- whether by credit card or some other registration procedure -- also would cause most users -- including minors -- to abandon their anonymity in order to access information. The ability of minors to anonymously access information on the Web is extremely valuable and constitutionally protected. For example, our members believe that it is critical that minors, especially older minors, have access on an anonymous basis to information concerning gay and lesbian human rights abuses (e.g., http://www.iglhrc.org); AIDS prevention and safe sex information (e.g., http://qrd.tcp.com/qrd/health, http://www.positive.org, http://www.safersex.org); and eating disorder recovery (e.g., http://alt.support.eating-disord).
31. The Internet is an important source of such information to older minors who do not have access to these resources where they live, who are inhibited from accessing the information because of fear of abuse, retaliation or disapproval by their parents or their peers, or who are simply too embarrassed to ask important questions about private matters. Peacefire considers the Internet's low-cost, easily available and anonymous means of accessing sensitive information to be exceptionally important to its members who are teenagers. Requiring the prior identification of users by content providers -- a procedure contemplated by the Act -- would interfere with the ability of Peacefire members to access these online resources on an anonymous basis.
32. Moreover, Peacefire fears that credit card and age verification would actually endanger minors rather than protect them. The current, anonymous system protects minors from age-based discrimination, harassment, and coercion. Peacefire fears that the imposition of credit card and age verification on the Internet would actually put minors at risk by singling them out to those who might take advantage of them. Peacefire believes that decisions regarding who should have access to the Internet are best left to minors and their parents.
33. Both Peacefire and its members provide content via the Internet. Peacefire, for instance, maintains a Web site on the Internet on which information is posted regarding censorship on the Internet. Moreover, some of Peacefire's members maintain their own Web sites. Additionally, our members communicate information to others -- adults as well as minors -- on the Internet through e-mail, newsgroups and other discussion groups, (such as Multi-User Dungeons or "MUDs"), chat rooms and personal Web sites.
34. While we are not aware of any content provided by Peacefire on its Web site or by its members which might be deemed "indecent," Peacefire and its members are nevertheless concerned about the risk of prosecution under the vague and overly broad provisions of the Act for disseminating information to minors in New York.
35. As set forth above, as content providers, neither Peacefire nor its members understand the meaning of certain provisions and certain defenses in the Act.
36. For example, Peacefire's Web site contains materials relating to minors' rights relating to cyberspace. From our home page, a user can also click on "CRADLE," the CyberRights and Digital Liberties Encyclopedia. CRADLE is an interactive encyclopedia of censorship-related terms and events. In order to obtain information on censorship on the Internet, a visitor to the Web site can do word searches and obtain information on this lawsuit for instance. See Exhibit 3.
37. Although this service on our site does not contain any sexually oriented material, it does provide links to Web sites of other organizations such as the sites of the American Civil Liberties Union (http://archive.aclu.org); the International Gay and Lesbian Human Rights Commission (http://www.iglhrc.org), see Exhibit 4; and the National Organization for Women (http://www.now.org). See Exhibit 5. These sites contain information regarding sexually oriented materials, including information regarding AIDS- related information and safe sex practices, that might be deemed actionable under the vague terms of the Act.
38. It is unclear whether Peacefire might be found liable under the Act for providing these links. The Act prohibits material that "considered as a whole, appeals to the prurient interest in sex of minors" and that "considered as a whole, lacks serious . . . value for minors." Peacefire does not know how to define the relevant "work as a whole" when trying to determine the potential "indecency" of its online documents, many of which are comprised of a variety of linked documents, images, and texts from a variety of sites not controlled by Peacefire.
39. Likewise, the Act appears to reach even speech between minors. For instance, the Act on its face regulates an intimate communication between two 16 year old lovers via e-mail. For example, if a 16 year old member of Peacefire was in love with a 16 year old from New York and engaged an intimate communication with his lover in New York via e-mail or a chat room, it appears that this communication would be actionable under the plain terms of the Act.
40. Much of the Internet use by Peacefire and its members is interstate in nature. The Peacefire home page can be accessed by Internet users throughout the United States. Moreover, all of Peacefire's members communicate with Internet users in various parts of the United States and outside of the United States through e-mail, mailing lists, newsgroups and chat rooms. As a result, a Peacefire member based in Kentucky who, for example, communicates with another Peacefire member about abortion services information and whether it should be censored on the Internet, has no way of determining whether her correspondent is located in New York. Because there is no way to determine the geographic location of people who access online communications, virtually all providers of content on the Internet must comply with the Act or risk criminal prosecution in New York. Therefore, the Act will regulate speech that is occurring outside New York State and in many cases taking place wholly outside New York State.
41. If the Act is not enjoined, Peacefire and its members will be irreparably harmed in a number of ways. First, the Act will prevent Peacefire's members from accessing materials that are constitutionally protected even as to minors. In addition, the Act jeopardizes the right of Peacefire's members to access certain information anonymously. Finally, the Act will force Peacefire and its members either to self-censor their communications or to risk criminal liability under the Act.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on this __ day of March 1997.
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Bennett Haselton